Seasonality in the H-2A Program
The H-2A Program is a legal program where agribusinesses can hire legal foreign labor to assist with their agricultural operations. In order to qualify for the H-2A Program, one of the first boxes an employer must check is that their opportunity is temporary.
Temporary can mean one of two things, either a one-time position that will be shorter than a year or must be able to easily tie the position to seasonal weather patterns.
Defining Seasonality
When defining seasonality we must refer to 20 CFR 655.103(d) which lays our the regulatory requirements surrounding the H-2A Program. Here is what it says:
“employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations.”
The first part in determining seasonality is the cyclical nature of the position. An obvious example of this is growing crops. For thousands of years, Farmers have been astutely tracking the earliest possible dates they are able to plant their crops and the latest they can harvest them. The longer the crop has to grow the more yield you should receive in the end. However, we all know if you plant too early and a frost comes through, there is a good chance you could lose your crop altogether. Just the same occurs with harvest where farmers try to maximize their window of when they pull the crops out of the ground but they must do so before weather patterns change and damage the crop they worked so hard on throughout the year. These weather patterns create a clear cyclical pattern of when work can be done.
The second part of the government definition of seasonality is the need must require “labor levels far above those necessary for ongoing operations.” The easiest way to think of this is if you need more help to get the job done then you will meet this definition.
How Do We Help Prove Seasonality
Should you decide to pursue hiring H-2A labor through FLC Made Easy, LLC we will first sit down and do a Free Consultation call. During this call we will discuss your labor needs and all of the seasonality factors that play into it. From this call we take very detailed notes on your specific situation and needs and draft a Temporary Need Letter explaining to the government how your job meets the definition of Temporary. Although we will never fabricate a need and put both parties in a precarious situation, we do vow to help establish and prove your seasonal need to the Government whenever one is present.
We are never looking to collect a quick buck off of everyone who is willing to sign up, we always first analyze your position with an unbiased approach and once we are sure we can make a strong seasonal explanation, we proceed. We would rather deeply analyze the position and ensure it does fit the mold the Government is looking for rather than to forgo the regulations and put your business at risk.
What Happens if the Government questions your seasonality?
In some cases, especially those cases that the Government has little experience with, the government can question your seasonality by issuing a Notice of Deficiency (NOD). If you receive one of these during your filing process do not be alarmed!
Many clients immediately read NOD and think of it as “Notice of Denial.” However, this is not the case at all. An NOD is essentially just a request for more information, a request for a small change, or a request for further explanation. Receiving an NOD puts your paperwork on a slight hold until we are able to respond with the facts back to the Government. We are the experts when it comes to handling NOD’s and have taken care of thousands of them over the years. We are excellent in formulating all of the relevant information in ways people working in Government offices can easily understand.
It is never our goal to receive Notice of Deficiencies and we are proud to say we are one of the organizations that receives the fewest each year relative to our competitors. We do everything we can to absorb as much information up front that we can weave into your paperwork to ensure we answer all of the Government’s questions before it comes to an NOD.
If you have any questions about our services, or if you’d like a Free Consultation, please click the link or the button below. We’re looking forward to meeting with you!
